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In twenty first century Ireland it is okay to talk about fertility, the difficulties experienced by certain people, and the various options open to people of all genders to have children of their own.

Recently Rosanna Davison announced that she and her husband are expecting a child through surrogacy. Behind this joyous news is a story of a long struggle with fertility. They are not alone. Many will thank her for being so open and candid about a subject that traditionally would never have been spoken about. So, have we moved on?

The world’s first test tube baby Louise Brown recently turned 41, so IVF as a means of conceiving is not new. The provision of fertility services and the demand for such services in Ireland has been growing at an expediential rate. It is now not uncommon for children to be conceived through IVF or surrogacy with or without the benefit of donated eggs or sperm or both.

While medical science is advancing and developing on a continuous basis, the law unfortunately has failed to keep up.

The Children and Family Relationships Act 2015 contains provision for the assignment of parentage in certain limited circumstances when a child has been born through donor conception. The relevant Parts of that Act, Parts 2 and 3, have not yet been commenced. The Department of Health recently announced an intention to commence those parts on the 5th May 2020.

Unfortunately, the legislation as drafted, is cumbersome and does not contain adequate provision to enable the establishment of parentage for all children born through donor conception. The fertility clinics and the department are currently in discussion on how the system might work and on the wording of the forms prescribed under the legislation.

This legislation does not contain provision for the recognition of parentage in the case of a child born through Surrogacy. Accordingly, there are no circumstances in which an intending mother will be recognised under Irish Law as the mother of a child born through a surrogacy arrangement. This is the position even if the child is genetically hers.

So, what happens if a child is born abroad through surrogacy?

The intending father must satisfy the Irish State and the Court that he is genetically related to the child. This is done through DNA tests which are carried out as soon as possible after the child is born.

The child, through the father, will then bring proceedings in the Family Circuit Court, for an Order of Declaration of Parentage. Such application will be based on the DNA results. Once declared to be a parent the father can then proceed with an application to be appointed as a Guardian of the child. As stated above there are currently no circumstances whereby an intending mother can acquire any parental recognition of that child under Irish law.

So, having struggled with fertility and having gone through all the trauma and anxiety that comes with infertility the intending mother is not under Irish law the mother of the child. The preposterous situation is that the Irish State recognises the surrogate as the mother of the child, when in reality, she is not. She will not care for the child and she will never have any involvement in the upbringing of the child and will never be in loco parentis to the child. She will have no responsibilities, obligations or rights in relation to the child.

Of more serious consequence under Irish Law the child is left in a very vulnerable position having only one legally recognised parent. If that parent dies the child will be an orphan.

Yes, we can talk openly about fertility, at the same time we are subject to an archaic law which not only penalises the parents but also the most important person in the equation, the child.

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